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In her wrap-up testimony yesterday in the House Judiciary Committee’s two-year Copyright Review, Maria Pallante, the Register of Copyrights, identified three categories of policy issues: those that are ready for legislative process, those that warrant near-term study and analysis, and those that warrant further attention. Unfortunately, what many perceive to be the Copyright Act’s greatest flaw, the existing structure of statutory damages, received just a passing reference in the third “warrant attention” category. As numerous witnesses testified during the course of the Copyright Review, the threat of statutory damages of $150,000 per work infringed chills investment in innovative technologies and allows copyright trolls to extort settlements that greatly exceed the actual harm caused.

The Register paid more attention to the Digital Millennium Copyright Act’s prohibition on the circumvention of technological protection measures, 17 U.S.C. § 1201, which appears on the first two lists. While the Register’s recognition of Section 1201’s flaws is welcome, the Copyright Office has the power to address some of these deficiencies itself without additional Congressional action.

Register Pallante correctly observes that a wide range of stakeholders support “mak[ing] it easier to renew exemptions that have previously been adopted and are in force at the time of the triennial rulemaking proceeding.” She states that “the Copyright Office agrees that the process of renewing existing exemptions should be adjusted to create a regulatory presumption in favor of renewal.” Accordingly, she feels that “it would be beneficial for Congress to amend Section 1201 to provide that existing exemptions will be presumptively renewed during the ensuing triennial cases where there is no opposition.”

However, the Copyright Office need not wait for Congressional action to make the renewal process easier. The Register asserts that “the Section 1201 statutory framework requires that, to continue an existing exemption, proponents must bear the legal and evidentiary burden of justifying the exemption anew .…” In fact, Section 1201 itself imposes no such burden. It simply states that the Librarian must make a determination in a rulemaking proceeding whether to grant an exemption to users of a certain class of works and that the exemption lasts for three years. The statute says nothing about how the Librarian should handle renewals of existing exemptions.

The notion that a proponent must justify an exemption de novo every three years derives from a single sentence in a single committee report issued during the legislative process that resulted in the DMCA. This sentence states that the Librarian’s “assessment of adverse impacts on particular categories of works is to be determined de novo.” The Copyright Office in its administration of the rulemaking is not bound by this report language. Thus, it could decide to create a rebuttable presumption in favor of renewal.

Moreover, even if the Office chooses to give weight to this language, the language only states that the Librarian must take a fresh look at whether users of a class of works are likely to be adversely affected by Section 1201’s prohibition. It does not say that proponents must create a new legal and evidentiary record in support of renewal of the exemption. Instead, the Copyright Office and the Librarian could just review the record created in the previous rulemaking, as supplemented by interested parties in the current rulemaking. If opponents of renewal do not offer substantial evidence that renewal would harm the market for or value of their works, see § 1201(a)(C)(iv), the Librarian is likely to reach the same conclusion he reached three years earlier. In short, the Copyright Office could significantly lighten the burden of renewal by indicating that it will incorporate the record created in the previous rulemaking.

Additionally, in the category of policy issues that warrant near-term study and analysis, the Register identifies numerous other potential problems with Section 1201. She notes that some of the permanent exceptions may be too narrow in scope, and that the exemptions created under the rulemaking apply only to the act of circumvention, and not the development and distribution of circumvention tools.

Further, she observes that some stakeholders have suggested “a disconnect between the original purpose of Section 1201—protecting access to creative works—and its effect on a wide range of consumer goods that today contain copyrighted software.” (This was the subject of a DisCo post earlier this year.) She adds that “consumers have voiced discomfort that Section 1201 prevents them from engaging in activities, such as the repair of their automobiles and farm equipment, which previously had no implication under copyright law.”

It is true that the Copyright Office cannot change the scope of the existing permanent exceptions, nor extend the exemptions to the trafficking in circumvention tools. It is also true that the Copyright Office cannot unilaterally solve the problem of the application of Section 1201 to embedded software essential to the operation of larger devices and machines.

At the same time, the Copyright Office could take a more pragmatic approach toward exemptions for embedded software. For example, it could consider, and ultimately grant, a broad exemption for all software essential to the operation of hardware in the lawful possession of the user. Regrettably, in this rulemaking cycle the Copyright Office has gone in the opposite direction, drawing up classes as narrowly as possible. For the unlocking of devices from wireless networks, the Copyright Office has identified five separate classes for five different kinds of devices. It has done the same for the “jailbreaking” of devices so that they can access alternate lawful content. For circumvention of TPMs on vehicle software, for the purpose of diagnosis and repair, or after-market customization, the Copyright Office is considering only land vehicles, when the same issue obviously will apply to boats and aircraft.

By balkanizing the embedded software problem in this manner, the Copyright Office places a much greater burden on the applicants of each narrow class to meet the evidentiary standard the Office imposes. Section 1201 certainly does not require the identification of such narrow classes.

Obviously these measures will not address all the ills of Section 1201. Legislation along the lines of the Unlocking Technology Act, H.R. 1587, or the Breaking Down Barriers to Innovation Act, S. 990 and H.R. 1883, are necessary to do that. But the Copyright Office could adopt these measures now, without Congressional action.

The Register’s testimony raises too many other issues to be examined here. But one proposal merits attention. In the category of issues that warrant near-term study and analysis, the Register recommends a “formal and comprehensive study” of the safe harbors in Section 512 “to ensure that it is properly calibrated for the internet as we know it today.” Frankly, the Section 512 safe harbors have been studied to death. They have been the subject of numerous Congressional hearings and were a major focus of the Commerce Department Internet Policy Task Force report on Copyright Policy, Creativity, and Innovation in the Digital Economy. As the Register’s testimony acknowledges, the Internet Policy Task Force’s report led to a year-long process to produce best practices for the notice and takedown system. The safe harbors have been examined in law review articles, economic studies, and Congressional Research Service reports. The Register asserts that “it is time to take stock of Section 512.” In fact, Congress, the Copyright Office, the PTO, the copyright owners, the Internet service providers, and public interest groups have been taking stock of Section 512 continuously since its enactment.

A far better use of government resources would be a formal and comprehensive study of statutory damages, “to consider what is working and what is not, along with possible legislative improvements…to…ensure that it properly calibrated for the internet as we know it today.”

On March 24, 2015, U.S. Representatives Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA) and Jared Polis (D-CO) re-introduced the bipartisan Unlocking Technology Act, a bill that would permanently allow consumers to unlock their cell phones and also allow the opening of digital locks for other legitimate uses. LCA applauds the re-introduction of this legislation which would facilitate legitimate uses of digital media and technology.

This bill improves on the Unlocking Consumer Choice and Wireless Competition Act, passed by Congress in July 2014, which renewed the previously granted exemption to allow consumers to unlock their cell phones after the Copyright Office failed to renew the cell-phone unlocking exception in its 2012 triennial rulemaking process. The Unlocking Technology Act permanently fixes a central flaw of the Digital Millennium Copyright Act (DMCA) which can be interpreted to allow for liability for opening a digital lock even where there is no copyright infringement. The bipartisan bill would free non-infringing uses of digital media and technology and allow the creation and distribution of the tools necessary to facilitate such legitimate uses.

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation! Today’s topic is “You Bought It, You Own It: Copyright policy should foster the freedom to truly own your stuff: to tinker with it, repair it, reuse it, recycle it, read or watch or launch it on any device, lend it, and then give it away (or re-sell it) when you’re done.”

You bought it, you own it. This principle applies in the analog world, but in the digital world it is less clear. In the digital world, technological protection measures (TPM) or “digital locks” may prevent a user from tinkering with a copyrighted work or product he has purchased, even if it is for a completely lawful purpose due to rules in the Copyright Act prohibiting circumvention of these locks.

ARL, as part of the Library Copyright Alliance, is currently involved in the Section 1201 rulemaking process, a procedure where the Copyright Office will determine what classes of works will receive an exemption from the anti-circumvention rules governing TPMs. The process takes place every three years—this is the sixth rulemaking—and individuals or groups can petition to have the previous exemptions renewed or expanded, or can apply for new exemptions.

The rulemaking process is time and resource consuming. Indeed, the 2009 rules were delayed and not announced until July of 2010. The entire process can take a year or more and because the exemptions are renewed de novo without any benefit of a presumption in favor of renewal, it is a burdensome procedure. These exemptions are not made permanent even after multiple renewals, but instead the entire process is repeated again and again.

It is important to note that the exemptions that are requested are for all for non-infringing uses. These are uses that would be permitted, without the time and expense of a rulemaking process, for copyrighted works in analog form which are not accompanied by TPMs. These uses might be for the same purposes as specific limitations and exceptions, such as the making of accessible format works for persons who are print disabled, or for fair use purposes. Despite the fact that these purposes are permitted where TPMs do not exist, in order to achieve these same purposes in the digital world, exemptions must be requested every three years.

This is a fundamental flaw in the language and interpretation of 1201. As LCA’s comments for the record at the House Judiciary Subcommittee hearing on the issue of technological protection measures points out:

The fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption—or that libraries and educators have to seek renewal of the film clip exemption every three years—demonstrates the fundamental flaw in section 1201. That flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work. Congress should adopt the approach proposed by the Unlocking Technology Act of 2013 and its predecessors, attaching liability to circumvention only if it enables infringement.

LCA’s petitions for the 2015 rulemaking process highlight some absurdities. One of its petitions focuses on making literary works distributed electronically accessible for persons with print disabilities. Although this exemption has been continually renewed since 2003, the exemption must again be petitioned for and new evidence must be submitted. The second LCA petition requests an exemption for motion picture excerpts, including expanding the current exemption for all storage media, including Blu-Ray discs. The 2012 exemption applied only to a specific type of technological protection measure, known as Content Scrambling System, which is used with DVDs; because Blu-Ray discs used a different form of a TPM, this 2012 exemption did not apply.

In addition to the fact that the process is extremely repetitive, resource consuming and unnecessary, the rules have grown increasingly complex and long. In the 2003 rulemaking, the Librarian of Congress exempted four classes of works; these rules were laid out in 200 words. By contrast, the 2012 rules included eight classes of works—though five of these classes all relate to motion pictures, particularly excerpts or screen captures—and these exemptions amounted to nearly 1200 words. Consider, for example, the specific exemption for literary works distributed electronically. The word count more than doubled from its 2003 language to its 2012 language, becoming more complicated and including a cross-reference to Section 121 of the Copyright Act.

2003 exemption:

Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook’s read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

2012 exemption:

(1) Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies in the following instances:

(i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or

(ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

The result of the increasingly complicated and specific language across all the exemptions (in fact, the language for the benefit of the print disabled above is relatively simple in comparison to other 2012 exemptions) is that these exemptions become virtually unusable for many users.

The process should be re-thought to ensure that 1) resources are not unnecessarily wasted through a repetitive, time-consuming process and 2) the beneficiaries of these exemptions can clearly understand the rules and make use of the exemptions.

On September 17, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a hearing on Chapter 12 of the Copyright Act, which governs technological protection measures (TPM). The hearing included four witnesses: Mr. Mark Richert, Director of Public Policy, American Foundation for the Blind; Mr. Jonathan Zuck, President, ACT | The App Association; Mr. Christian Genetski, Senior Vice-President and General Counsel, Entertainment Software Association; and Ms. Corynne McSherry; Intellectual Property Director, Electronic Frontier Foundation.

The LCA testimony points out that overly-broad anti-circumvention language was initially proposed in 1994 and 1995 over objections that these prohibitions could prevent circumvention for lawful purposes. After the 1996 adoption of the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), PTO Commissioner Lehman proposed new anti-circumvention language to implement the treaties. Again, the proposals were overly broad, regulating both tools and conduct, regulating circumvention apart from underlying infringement and governing circumvention for both access-control technologies and copy-control technologies rather than only prohibiting copying. Significantly, the WIPO treaties did not require these overly-broad features, as Commissioner Lehman himself conceded when testifying before the House Judiciary Subcommittee.

Despite the fact that alternative proposals were made to address these overly-broad proposals, “Congress instead created a set of complex exceptions and limitations to the administration’s sweeping language, resulting in the convoluted, inconsistent section 1201 we have today. Some of these limitations are of limited effectiveness.” Additionally, Congress, in recognition that additional exceptions other than those explicitly included in Section 1201 may be desirable, directed the Librarian of Congress to conduct a rulemaking process every three years to determine additional classes of works that should be granted an exemption for the subsequent three-year period. However, as the LCA testimony points out, “A narrower section 1201 limited to circumvention that led to infringement would have obviated the need for the rulemaking procedure altogether.”

Over the years, there have been several efforts to amend section 1201 to address the potential problems resulting from an interpretation of this section as prohibiting circumvention of access controls or the manufacture and distribution of circumvention tools, even if they are for non-infringing purposes. These bills have varied from creating additional specific exceptions to requiring a nexus between circumvention and infringement. Most recently, controversy over the Librarian of Congress’ 2012 decision not to renew an exemption for cell phone unlocking that had been granted in previous rulemakings, resulted in renewed efforts to address flaws in Section 1201. Although Representatives Lofgren (D-CA), Massie (R-KY), Eshoo (D-CA) and Polis (D-CO) introduced a broad bill, the Unlocking Technology Act of 2013, that would have permitted circumvention for non-infringing uses, ultimately Congress took a narrower approach and adopted a temporary fix specific to the problem of cell phone unlocking.

The LCA testimony also includes a summary of litigation over Section 1201, explaining that currently a circuit split exists as to whether the language of 1201 requires a nexus between infringement and circumvention for liability to attach.

Additionally, the LCA testimony covers the three-year rulemaking process, which LCA members have participated in during each cycle. The testimony points out some of the absurdities of the process as well as the high costs and burdens of participating in the rulemaking cycle. The testimony points out that “From start to finish, the process can take more than a year” and that the inefficient system places burdens on not only the proponents of exemptions, but the Copyright Office, as well.

The testimony concludes with several proposed amendments to Section 1201 including:

Attaching liability to circumvention only if it enables infringement

Placing the burden of proof on those opposing renewal of exemptions to demonstrate why it should not be renewed or should be modified

Making exemptions permanent if a second renewal is granted

Shifting final rulemaking authority from the Librarian of Congress to the Assistant Secretary for Communication and Information of the Department of Commerce

The Library Copyright Alliance (LCA) applauds the introduction on May 9, 2013, of H.R. 1892, the Unlocking Technology Act of 2013, by Reps. Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA), and Jared Polis (D-CO). The bill guarantees that legitimate uses of digital works and technologies will not run afoul of copyright law, even if they require breaking digital locks. Prompted by the recent uproar over cell phone unlocking, the bill recognizes that issue as a symptom of a much larger problem and would fix that problem permanently.

The Digital Millennium Copyright Act (DMCA), passed in 1998, made it illegal for owners of legally purchased digital media and technologies to modify their property if it would break digital rights management (DRM) and other forms of digital locks. The DMCA placed a shadow over a host of normal activities of libraries and their patrons: ripping DVDs to facilitate teaching and learning, converting ebooks to accessible formats, modifying tablets to run different software, and more.

Under current law, libraries and their patrons must ask the Copyright Office for special carve-outs every three years to allow these kinds of uses, even though they don’t infringe copyright. The Office has issued some favorable rules for library uses, but those rules are limited in scope, difficult to win, and can be revoked by the Office at any future rulemaking. Indeed, it was the revocation of the cell phone unlocking exception that raised recent alarms about the DMCA and the power it gives the Copyright Office

The Unlocking Technology Act does away with this bizarre aspect of the DMCA, freeing all non-infringing uses regardless of their effect on DRM. Importantly, the Act also permits the creation and distribution of tools required for unlocking, without which the right to unlock would be useless. LCA applauds the sponsors for their leadership and vision, and urges others in the House to support this important bill.

The Library Copyright Alliance (LCA) consists of three major library associations—the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. These three associations collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the United States and Canada. Find us on the web at http://librarycopyrightalliance.org/.

When last I looked, both the FCC, the Copyright Office, and USTR are part of the “government” that this bill says must not “control” the Internet. You can’t kneecap the FCC without kneecapping the Copyright Office and the USTR.

Talk about an accidental grand bargain! Kill net neutrality and kill copyright enforcement online, too. Somehow I think Harold is right – that’s not a bargain the NN-haters mean to make.

On March 4, 2013, Maria Pallante, the 12th United States Register of Copyrights, delivered “The Next Great Copyright Act” at Columbia Law School. In the lecture, Register Pallante reflected on the history of other major comprehensive revisions to United States copyright law. She argued that the time has come for the next general revision to begin by noting the complexity of current copyright law and its failure, in some areas, to stay current. She highlighted the work the Copyright Office has already undertaken in preparation for the next act, including reports on Digital First Sale, Orphan Works, Pre-1972 Sound Recordings, Mass Digitization, and others. Finally, she laid out a number of issues that are on the table for consideration in the next round of comprehensive revision.

The content of the next comprehensive copyright act is important to libraries and library patrons. Copyright law impacts library services at all levels, from the basics of making unsupervised copiers available to patrons to the complicated digitization of works in library collections. In the lecture, Register Pallante highlighted a few issues important to libraries, including the first sale doctrine, the libraries and archives exception, the blind and print disabled exception, and the length of copyright protection. The next copyright act is certain to implicate many library services, not to mention the general flow of content in modern society.

Because of the importance of this lecture, I am sharing my notes below. The lecture was recorded, but is not yet available on the Kernochan Center’s website. I strongly recommend watching the recording when it is available. I labored to take accurate notes and do not intend to misrepresent the content of the lecture. Even with my diligence, these notes should not be understood to be an official record or transcript of the lecture.

My notes on “The Next Great Copyright Act”

The next comprehensive review should begin soon. A comprehensive review is needed for two main reasons. First, courts are asking Congress to fix copyright law (see, e.g., Golan, Google Books, Tenenbaum). Second, more people need help navigating a complex law and shouldn’t and army of lawyers to understand copyright law.

There should be two main themes for the next great copyright act. First, it should be forward thinking, but flexible. Second, authors’ rights to enjoy control and exploit works needs to be meaningful. Authors are not the counterweight to the public interest because protecting authors is in the public interest. A copyright act that did not protect authors would be illogical. But, the law needs to recognize that some authors are different by giving weight to Creative Commons licenses and public domain declarations.

The issues on the table for the next comprehensive review include:

Incidental Copies

—Not all copies are the same

—Perhaps there could be discrete exceptions for certain incidental copies

—For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act

Public Performance Right for Sound Recordings

—Copyright Office is a “strong supporter” of a public performance right for sound recordings

—Disparities between terrestrial radio and internet radio royalty rates are hampering new business models

Stronger Enforcement

—The new law must respect the integrity of the internet, including free speech

—There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online

—On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads

Small Claims

—The Copyright Office is studying this issue

—Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive

—The Copyright Office could, potentially, take a lead role in administering small claims

Statutory Damages

—Review registration requirements

—Look at statutory damages from all angles

—Statutory damages are important part of copyright act and should be retained

—Need to provide guidance to courts about how statutory damages should be applied

—The deposit requirements for registration should remain in next copyright act

—Congress should review the legal incentives for registration

—How can the Library of Congress add born digital works to its collection through this process?

—The policies surrounding mandatory deposit should not be driven by the collection building activities of the Library of Congress (see the ACCORD Report for more information)

First Sale

—Digital first sale will be an issue on the table

—Physical first sale may also need to be reviewed, depending on the outcome of the Kirtsaeng v. John Wiley & Sons case currently before the Supreme Court

Other Exceptions/Limitations

—The libraries and archives exception in § 108 should be updated

—Update exceptions for the blind and print disabled in § 121 for the digital world

—Explore new exception for higher education institutions

—Personal space-shifting

Licensing

—Need to review growth of licensing schemes

—Review mechanical licenses

Now the “bold” issues:

Term of 50 years, renewable for an additional 20

—The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

—However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

—This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

—Modeled after § 108(h), something the Copyright Office is very fond of

—This proposal would be acceptable under various international treaties, including the Berne Convention

Opt-Out v. Opt-In

—Extended collective licensing could potentially solve many problems

Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.

This is why we find international agreements like ACTA, TPP and now TAFTA so worrisome. Even when they do not directly change the law, they often lock us into bad laws such that we cannot easily fix them.

Excessively tough copyright law is good for big businesses with large legal departments but bad for new businesses that can’t afford a lawyer. And while Khanna, like many young conservative thinkers, believes in free markets, the Republican Party is heavily funded by big businesses.

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Unless otherwise noted, posts after January 10, 2014 are written by Krista L. Cox, Director of Public Policy Initiatives at ARL. Some of the content here will not be written or created by ARL, but rather will be collected from elsewhere on the web. Quotation does NOT imply endorsement!

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02/19/2019 at 3:09pmI first saw this discussed on Twitter, now WaPo has an article on Justice Thomas' concurrence in a denial of cert, but that urges reexamining the 1st & 14th Amendments in libel cases (i.e. a reexamining of NYT v Sullivan) https://t.co/lCwY85MEO0